Congress unlikely to push federal mandate on campus free speech

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Congress is unlikely to take on the task of issuing a free speech mandate or code for colleges and universities across the country.

That was the primary takeaway from Thursday’s hearing on campus free speech held by the Senate Committee on Health, Education, Labor and Pensions, which covered a range of topics, from allowing controversial speakers on campus to the rights of NFL players — and their college counterparts — to protest during the National Anthem.

“With respect to public universities, there is a free speech mandate — it is the First Amendment and all of the jurisprudence associated with the First Amendment,” said NYU Law faculty member and former ACLU President Nadine Strossen. “As for private universities, I would defend their free speech rights” to bar or invite anyone they like on their campuses, she added, expressing her fervent belief in “viewpoint neutrality” and the idea “that government may never pick and choose which particular viewpoints to approve” in public discourse.

“I would be loathed to see, at this point, any greater federal regulation imposed upon private colleges and universities than already exists,” said University of Chicago President Robert Zimmer. “The questions are deeply cultural, they’re going to have to be solved by those on campuses, they’re not going to be improved by having a debate about which end of the spectrum should apply more pressure.”

When the topic of athlete protests was brought up, by Sen. Johnny Isakson (R-GA), most of the panelists seemed uncomfortable answering, but Zimmer and Strossen finally decided players’ rights to protest should be protected following the same logic used to defend the right of controversial speakers to appear on campus.

Strossen stressed the responsibility of college presidents to enforce the First Amendment “as the Supreme Court has very [clearly] defined it,” which, she stressed, excludes any speech which presents a “clear and present danger” of “substantive evils,” and when it is “directed at inciting or producing imminent lawless action,” per the SCOTUS interpretation.

Zimmer said it’s important “not just to be reactive to independent events,” but urged his fellow presidents “to take a long, thoughtful look at diversity and inclusion of everyone on campus.”

“Inclusion issues on one hand and free speech issues on the other hand, I think is honestly not the right line to draw; it conflates things that are different,” he said. “What we want is to be including all students and help them to understand that the power of the education they’re going to have is going to be” through exposure to diverse viewpoints.

This idea resonated with Committee Chair Lamar Alexander, who said, “We live in a world where we get most of our information from people who already think like us,” which he said even more makes the argument for a liberal arts education’s role in teaching students to be critical thinkers.

J. Richard Cohen, President of the Southern Poverty Law Center, said “racist speakers on campus provide a teachable moment, an opportunity for presidents to speak out in favor of the 14th amendment” and defend the experiences and the safety of students of color.

“I think it’s really quite important for college presidents to separate themselves from the incendiary remarks of [controversial speakers] by saying ‘our college does not support this,’” said Cohen, who expressed a belief that it is equally important not to bar those individuals from campus. College presidents “have to respect the right of the speakers, and they have to respect the rights of the students who wish to protest,” he said.

Instead of trying to block speakers from campus and allowing them to become “martyrs for free speech,” as Sen. Elizabeth Warren (D-MA) said, Cohen suggested hosting alternative, university-sponsored events at the same time to provide a forum for those who disagree with the speaker’s ideas to speak out and “express the university’s true values and the values of our country.”

“We make progress as a country by having ideas tested, by applying critical thought to ideas that are expressed in every walk of life,” Cohen said. “We would be much worse off if university presidents, students or anyone could censor the speech of anyone simply because they didn’t agree with it.”

“Free speech is not some left versus right issue; it doesn’t work that way,” said Warren.

And while Warren said she thinks “spouting fake science is extremely corrosive to public society and should be called out, in public, at every opportunity,” she also was emphatic that “suppression suggests weakness, it makes us seem as if we’re afraid, as if we can’t suppress evil ideas with good ideas.”

However, cautioned Sen. Maggie Hassan (D-NH), “telling people who have been victims of hate speech or of physical violence in the past how to feel is inappropriate.”

Warren agreed.

“Free speech doesn’t mean someone is entitled to an audience. Free speech isn’t about shutting up while someone demeans people of color, or women for that matter,” she said.